Labor law of the churches

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The labor law of the churches includes all the special rights that they have as employers and the special provisions that they must observe.

Germany

The labor law regulations for employees of the churches and church-related organizations in Germany differ considerably from the provisions applicable to other employees.

The religious and ideological communities, and especially the large churches, can issue their own labor law. This has its basis in what is known Selbstordnungs- and self-administration in accordance with Art. 137 , para. 3 Weimar constitution , the by Art. 140 GG incorporated into the basic law and fully effective Constitutional Law is. Historically, this determination is rooted in the process of separating church and state . In the Middle Ages, many bishops were also imperial princes and until the 18th century, the communes administered the ecclesiastical property, while the local priests were also state officials.

The church's right to self-regulation and self-administration - also known as the right to self-determination - is exercised by the churches in three directions in terms of labor law:

  1. In order to work in church institutions, the employee is expected to conform to the church's beliefs and morals . A breach of these duties of loyalty has consequences under labor law - up to and including termination.
  2. Instead of a works council or staff council , the church employees are involved in operational decisions through an employee representative body.
  3. The wages and other basic working conditions are generally not within the scope of bargaining set ( "the second path") or unilaterally by the employer ( "first path"), but by bodies that are of equal numbers of the rows of employees and the employee ( "third way "). According to the churches, industrial action ( strikes and lockouts ) are incompatible with service to others and are therefore excluded.

The public religious societies can special employment contracts, but also officials like employment contracts establish that a government civil servant equal. As in the case of the state, the "first path" is then taken to regulate the legal relationships, i. H. the unilateral appointment by the employer . The ecclesiastical service law also shows deviations, but is at the same time subject to a type requirement, i. H. the churches must adopt the essential regulations of state civil service law. For the most part, however, employees are employed under private law. According to the decision of the Federal Constitutional Court of June 4, 1985 (2 BvR 1703/83 et al.), State labor law is to apply to these employment relationships - as a result of a choice of law, as the Federal Constitutional Court clarifies. However, state labor law expressly excludes churches and their institutions in some regulations. Then it is not about "laws that apply to everyone". This leaves room for the church's own regulations.

The application of the Works Constitution Act and the Employee Representation Acts are excluded by provisions in these laws, including "for the churches and their charitable or educational institutions". With the exception of the churches, the state also made it clear in the staff representation laws that they should create an independent right of co-determination. Instead of these laws, the church employee representation laws (Protestant) or employee representation regulations (Catholic) apply, with some significant deviations from state law. They are enacted by the respective church legislators, i.e. the synod or the diocesan bishop . Since the (public law) constituted church also has the public law "legislative authority", these are both canonical as well as public law regulations that are valid even without an employment contract - even for employees who do not belong to the respective church.

The General Equal Treatment Act is also restricted in its validity for religious and ideological communities. In this way, these communities can take religious affiliation as a starting point for treating their employees differently. Religious communities and ideological communities also have the right to demand loyal and sincere behavior from their employees in line with their respective self-image ( Section 9 AGG ).

Organizations covered

The religious and ideological communities are recorded, regardless of their legal form, and the religious associations assigned to them, i.e. H. Institutions that are the "expression of essence and life" of the religious or ideological community.

First of all, the so-called “constituted church”, i.e. the actual church organization, belongs to the former. In the Catholic Church this is divided into dioceses , which - together with an archdiocese each - are grouped together in church provinces ; this also includes institutes of consecrated life (e.g. religious orders ). In the case of the Evangelical Church , this includes the regional churches that are united in the Evangelical Church in Germany (EKD), the Union of Evangelical Churches (UEK) and the United Evangelical Lutheran Church of Germany (VELKD). In principle, non-Christian religious communities are also covered by the special rules (e.g. Judaism and Islam), but these have not yet appeared in the case law on church labor law.

The second group includes all institutions assigned to religious and ideological communities in a certain way, regardless of their legal form. This includes institutions which, according to their religious and ideological self-understanding, their purpose or their task, are called to perceive and fulfill part of the Church's mission in this world. Diakonie and Caritas , but also church kindergartens, the Katholische Nachrichtenagentur (KNA) or the Protestant Press Association Nord e.V. can be used as examples of organizations that are considered to be the “expression of the essence and life” of the churches . V. or the Pax-Bank and similar ethical-ecological credit institutions.

Loyalty obligations - protection against dismissal for employees of churches and church institutions

First of all, it is a matter of dispute which requirements a church institution can demand when hiring applicants.

The Dismissal Protection Act also applies in church organizations, but violations of canonical loyalty obligations can also justify behavior-related dismissal. The duties of loyalty are regulated in the Catholic Church in the basic order of ecclesiastical service within the framework of ecclesiastical employment relationships and in the EKD in the loyalty guideline.

It is a consequence of canon law which obligations these are and how their severity and scope are to be appreciated. According to the decision of the Second Senate of the Federal Constitutional Court on June 4, 1985, the state labor courts have to answer the question of whether a breach of these obligations of loyalty justifies dismissal in accordance with the dismissal protection provisions of § 1 KSchG, § 626 BGB. As a law that applies to everyone within the meaning of Art. 137 Paragraph 3 Clause 1 WRV, these are subject to extensive labor court applications.

This requirement to weigh up is also reflected in the judgment of the Federal Labor Court of April 25, 2013. The Federal Constitutional Court expressly pointed this out in its decision of October 22, 2014 - 2 BvR 661/12. In the specific case, the Federal Constitutional Court particularly emphasized the voluntary contractual obligation to comply with the loyalty obligations. It is therefore up to the church to determine which requirements apply to church workers based on the religious foundation of their work. On the other hand, it is up to the courts to assess whether this religious justification is plausible and not arbitrary, because the statutory regulations such as the Dismissal Protection Act (KSchG) also apply to the churches. Their correct application is to be checked by the state courts.

Non-denominational status, leaving the church, membership in another religious community

In its judgment of December 13, 2012, the Aachen Labor Court awarded a non-denominational nurse compensation because he was not employed due to a lack of religious affiliation.

The termination without notice of a kindergarten teacher employed by the Protestant Church because of her membership in another religious community (here: "Universal Church / Brotherhood of Mankind"), according to a judgment of the Federal Labor Court, does not violate German labor law or, as the European Court of Human Rights decided, against the freedom of religion guaranteed in Art. 9 ECHR.

In April 2013 the Federal Labor Court ruled that Caritas was permitted to dismiss a social worker under labor law because he had left the church.

On April 17, 2018, the European Court of Justice ruled by way of a preliminary ruling from the Federal Labor Court on the interpretation of the Anti-Discrimination Directive that the requirement that applicants for a position to be filled by the Church belong to a certain religion must be the subject of effective judicial control. In the opinion of the European judges, the decisive question is whether the advertised activity necessarily requires that someone is in the church and is committed to its values. In the event of a dispute, this question must not be decided by church employers but by the competent national courts.

On October 25, 2018, the Federal Labor Court ruled that the Protestant Diakonie should have invited a non-denominational applicant for a temporary speaker position at the Evangelical Work for Diakonia and Development (EWDE) to an interview and awarded the plaintiff financial compensation.

Off-duty behavior

The second point of contention is the relevance of off-duty behavior.

For a Catholic secretary who is getting divorced and remarried, or a doctor in a Catholic hospital who publicly advocates abortion , the extent to which effective conduct-related dismissal is permissible is controversial. Various cases of off-duty behavior are controversial. One focus of the legal disputes revolves around homosexual employees, their private life and their entering into a civil partnership. The other focus of the legal disputes revolves around the remarriage of divorced heterosexual employees or extramarital relations of the employee.

On May 5, 2015, the German Bishops' Conference presented a new version of the church labor law that had been approved by a two-thirds majority of the German diocesan bishops , which provides for greater involvement of the trade unions in the negotiation of working conditions. Entering into a second civil marriage after divorce as well as the registration of a same-sex civil partnership should only lead to termination in cases in which an increased obligation of loyalty is expected. This is the case with employees who are pastoral, catechetical, active on the basis of a missio canonica or a special episcopal commission, since a serious breach of loyalty is "in any case likely" to impair the credibility of the church. The decision of the bishops' conference is not binding on the individual diocesan bishops; each individual local bishop is free to keep the old legal position. In 23 of the 27 dioceses the reform came into effect on August 1, 2015, in the dioceses of Eichstätt, Passau and Regensburg it will come into effect on January 1, 2016. However, there are different procedures with regard to which group of people there are special loyalty obligations.

Sexual orientation and civil partnership / same-sex marriage

While there are no dismissals under labor law in the regional churches of the EKD , as the EKD advocates life partnership institutes for same-sex couples with the basic document of 2001 “Strengthening responsibility and reliability”, dismissals under labor law in the Roman Catholic Church should be mentioned here in particular.

According to one opinion, the off-duty behavior of employees is not suitable to justify a dismissal by the employer, even if the behavior is a serious breach of loyalty by the standards of the Church. The Labor Court Frankfurt am Main denied in a 2007 judgment that the disclosure of the openly lived (homo-) sexual identity of a church employee in private life could justify the termination of a home manager.

According to Section 2 (4) AGG, only the provisions on general and special protection against dismissal apply to dismissals. The AGG, which prohibits discrimination against employees, for example because of their sexual orientation or because of their religious affiliation, should therefore not be applicable in dismissal proceedings. This is formally criticized by the European Commission and is the subject of infringement proceedings . According to the judgment of the Federal Labor Court, the AGG must not only be taken into account when hiring and during the employment relationship, but also in the event of dismissals, but churches have been granted far-reaching exceptions under Section 9 AGG, whose conformity with the EU Directive, as mentioned above, has been questioned which, however, currently does not provide a legal basis for lawsuits by the dismissed workers (unless the churches would not make use of their right of self-determination and self-administration).

Remarriage in the Roman Catholic Church

According to the teaching of the Roman Catholic Church on the sacramentality of marriage, remarriage constitutes a violation of the moral doctrine of the Church. Two cases of termination have led to decisions by the highest courts:

Head physician case

The regional labor court in Düsseldorf and in the appeal also the federal labor court confirmed in judgments that the violation of the Roman Catholic moral doctrine in a remarriage, even though the first marriage was not annulled under canon law, is fundamentally suitable to justify a dismissal. In the specific case, the courts of labor jurisdiction nevertheless considered the dismissal to be disproportionate because the employer had behaved inconsistently.

However, the Federal Constitutional Court overturned this decision in October 2014. It was initially decisive that the termination in the case of a second marriage was expressly agreed in the employment contract. Because the consequences of a breach of loyalty must not surprisingly lead to labor law sanctions for the employee concerned. In addition, such an agreement must not violate a statutory prohibition. Such regulations would be illegal and therefore ineffective. Assuming this, a multi-stage examination process must take place. In a first stage, it should be checked whether the agreed restrictions on the employee's own fundamental rights are in accordance with the “fundamental constitutional guarantees” (“fundamental constitutional principles”), the “basic principles of the legal order” and “other legal obligations”. Because even the church must not demand any unlawful demands for loyalty. In a second examination step, the interests of the churches must then be compared with the “fundamental rights of workers in an open overall balance”. This balancing can in turn be subjected to constitutional control. The Federal Labor Court was not allowed to make an independent assessment of religiously pre-determined facts. Which basic church obligations can be significant as the subject of an employment relationship depends solely on the standards recognized by the constituted church and the specific content of the employment contract. The state courts are not allowed to disregard the church's self-image as long as it does not conflict with fundamental constitutional guarantees.

In 2018, the Federal Labor Court ruled again on the legality of the termination. It had the church's right to self-determination and corporate freedom of religion on the part of the church employer with the protection of marriage and family (Article 6, Paragraph 1 of the Basic Law) as well as the idea of ​​protection of legitimate expectations (Article 2, Paragraph 1 of the Basic Law in conjunction with Article 20 Para. 3 GG) on the part of the employee to achieve an appropriate balance ( practical concordance ).

With a decision of July 28, 2016, the Federal Labor Court suspended the appeal proceedings pending the decision of the European Court of Justice (ECJ) on a request for a preliminary ruling on the interpretation of the European Equal Treatment Framework Directive . The question arises whether the observance of the understanding of marriage according to the doctrine and canon law of the Roman Catholic Church is an essential, lawful and justified professional requirement within the meaning of Article 4 (2) of the directive, which leads to unequal treatment in the event of dismissals Roman Catholic workers can lead to workers of another denomination or without a denomination. In the opinion of the ECJ in the judgment of September 11, 2018, the requirement on the doctor to observe the sacramental character of marriage according to the Roman Catholic understanding does not appear to be an essential, lawful and justified professional requirement. In the present case, the unequal treatment consisted in the fact that two divorced and remarried chief physicians worked at the clinic, who had not been dismissed because they did not belong to the Roman Catholic Church. The hospital had put one of its doctors at a disadvantage compared to other doctors because he was a Roman Catholic.
On February 20, 2019, the Federal Labor Court decided that the chief physician had been inadmissibly disadvantaged by his church employer compared to non-Roman Catholic colleagues . The termination is not socially justified by reasons in the behavior or in the person of the chief doctor. With his remarriage, he violated “neither an effectively agreed duty of loyalty nor a legitimate expectation of loyalty” of the church (2 AZR 746/14).

Roman Catholic church musician

The Federal Labor Court declared on September 16, 2004, the termination of a Roman Catholic church musician in another case, to be effective, whose remarriage was subsequently becomes known after setting; The conclusion of a marriage that is invalid according to the understanding of the faith and the legal system of the Church is such a serious breach of loyalty. The case was ruled by the European Court of Human Rights on September 23, 2010 : Germany had violated the church musician's right to respect for his private and family life , Article 8 of the ECHR , by recognizing the church's loyalty guideline as the basis for dismissal . The matter was referred back to the German jurisdiction with the stipulation that in future the interests should be carefully weighed up and differentiated according to the type of activity. The German labor courts can no longer declare dismissals to be legal without carefully weighing up interests and simply by referring to the case law of the Federal Constitutional Court. The ECHR criticized the German labor courts for not having adequately assessed (with regard to Art. 8 ECHR ) why the church should not have been able to continue employing the musician without the church as a whole having suffered a serious loss of credibility . The German courts had accepted the lecture of the church employer in this regard, although they also found that the musician had not been active in a managerial or clerical position within the Roman Catholic Church. The court also emphasized the fact that a dismissed church musician had extreme difficulties in finding a new job, for example, a position in a Protestant congregation was only possible in rare exceptional cases. In a further decision in 2012, the choir director was awarded financial compensation.

This case highlighted a main point of dispute with regard to the church's loyalty requirements: It is disputed whether the labor courts should graduate the requirements according to their proximity to the religious mandate. The decisive factor should be the type and position of the profession at the church employer and whether it is a job in an area that is not or is close to the preaching. As a result, less demands should be placed on a cleaning lady in a church hospital in terms of personal lifestyle than on a religion teacher who is supposed to credibly proclaim church teaching. The church employers should thus become so-called " tendency companies ". The church's loyalty obligations have not lost their importance.

Consequences under canon law

Due to the debate about the divorced remarried in the Roman Catholic Church in Germany, the German Bishops' Conference set up a working group at the end of September 2012, which, among other things, was supposed to revise the labor regulations. The result is a new version of the “Basic Regulations of Church Service in the Framework of Church Employment Relationships”, which was adopted on April 27, 2015 and will apply from August 1, 2015 in 23 of 27 dioceses. On January 1, 2016, the other three dioceses followed. According to this, special duties of loyalty are only required of Roman Catholic employees in the pastoral and catechetical area with regard to remarriage and entering into a civil partnership.

The extraordinary dismissal of the head of a Caritas facility for the disabled , who entered into an “inadmissible civil marriage” after his divorce in 2010 in 2017, was declared ineffective by the Hagen Labor Court in August 2018, also citing the changed “basic rules”.

Extramarital Relationships in Mormon Churches

In another case, the Federal Labor Court dismissed a complaint from an executive of the Mormon Church of Jesus Christ of Latter-day Saints who had confided in his employer that he was in an extramarital relationship. The case came before the European Court of Human Rights, which on September 23, 2010 upheld the decision of the Federal Labor Court.

Employee representation in church organizations

Neither the Works Constitution Act nor the Personnel Representation Act apply in church institutions ( Section 118 (2) BetrVG, Section 112 BPersVG ). The churches and their charitable or educational institutions - regardless of their legal form - expressly exclude these regulations. This exception does not apply to commercial operations or companies, even if they are owned by church institutions.

The churches have created their own employee representatives for themselves and for these charitable or educational institutions . In the Catholic Church in Germany, the MAVO (Framework for Employee Representation Regulations) is the model for the diocesan employee representation regulations; the Protestant Church unified a previously confusing and fragmented regulation and on November 6, 1992 enacted the Church Law on Employee Representations in the Protestant Church in Germany (MVG). Initially, it only applied directly to the EKD, not to the individual regional churches or social welfare organizations. The Diakonisches Werk (DW) of the Evangelical Church in Germany (EKD) took over the MVG in October 1993 at the Diaconal Conference of the DW-EKD in Halle (Saale). The individual regional churches and diaconal organizations followed, although they took the opportunity to make some deviating regulations within the framework of the takeover laws. Some regional churches continue to have their own employee representation laws, for example for the Confederation of Evangelical Churches in Lower Saxony. There is no completely uniform employee representation law on the Protestant side.

The participation rights of the employee representatives differ considerably from the Works Constitution Act and the Personnel Representation Act. The defining principle is the joint regulation of working conditions, not the opposition between the works council and the employer. Against this background, the employee representatives tend to have weaker co-determination rights; however, the objects of participation are by and large defined similarly. However, there are regional differences in the composition of the employee representatives.

In the event of disputes in the area of ​​employee representation law, it is possible to appeal to the church courts. The state legal process is not open or subsidiary.

Employment contract law - third way

With the so-called third way, the constituted churches in Germany have created an independent collective employment contract law for the inter-company area, which regulates the basis of the collective bargaining system in a way that deviates from the applicable collective bargaining law. Instead of an independent setting by the employer ("first way") as with state officials or taking over the collective bargaining system ("second way"), the "third way" means that the basic conditions of the employment relationship are laid down in general guidelines or regulations. Church bodies are responsible for preparing them. These are made up equally of elected representatives of the employees and representatives of the employers who are not bound by instructions. The naming of the social partners who shape labor law in the third way (basics of labor contract law , collective bargaining development) is not uniform. The employees are represented by delegates from the general committees or working groups of the employee representatives. In some regional churches, such as Bavaria, the entire committee is not recognized by the church and diaconal leadership. There, associations, in some cases, represent the employees, which have little support among the workforce. A resolution usually requires a two-thirds majority. If no agreement can be reached, a binding arbitration will be carried out.

In the North Elbian Evangelical Lutheran Church and the Evangelical Church in Berlin-Brandenburg-Schlesische Oberlausitz (EKBO) the “Third Way” is not used, but collective agreements have been concluded. As a church peculiarity, these collective agreements do not include strikes and lockouts. The effectiveness of this exclusion is often doubted. In the opinion of employers and church-related lawyers, the “third way” is associated with a restriction of labor disputes, the binding of the “employers' association” to the decisions of the synod, a ban on differentiating between members and non-members of the “collective bargaining parties” and the ban on agreeing more favorable terms. The employers' side is under canonical law obliged to pay fairness.

The Protestant Church in Germany formed "labor law commissions" on the basis of the - non-state - labor law regulation law, while the Catholic Church established commissions for the regulation of labor contract law ( KODA ). These each created sets of rules that are similar in structure and content to standard collective agreements and, through extensive takeovers, constitute working conditions comparable to non-church collective bargaining law. However, these regulations are not collective agreements in the legal sense, but general terms and conditions , which are subject to content control by the labor courts according to §§ 305 ff. BGB . This content control, however, if the canonical-collective regulation has come about properly in the third way with equal, independent representatives from both sides, is limited to the question of whether the canonical regulation is against the Basic Law, against other higher-ranking mandatory law or good morals violates. With the decision of July 22, 2010, the BAG continued the case law that was in force before the reform of the law of obligations (Law on the Modernization of the Law of Obligations of November 26, 2001 - Federal Law Gazette I p. 3138 - mWv January 1, 2002). At the time, the law on general terms and conditions specifically did not apply to employment contracts; these could therefore not be checked for legality in accordance with the provisions of this law. With the reform of the law of obligations, the content control according to § 307 also applies to employment contracts. With the continuation of the previous jurisprudence, which became obsolete due to the reform of the law of obligations, the BAG interprets the provision of Section 310 (4) sentence 2 very broadly, according to which “the particularities applicable in labor law must be adequately taken into account”.

In contrast to collective bargaining agreements, the church's collective employment contract guidelines do not have any direct and compelling effect on employment relationships. Their validity must be agreed separately through an individual contractual provision (Section 305 BGB). Therefore, individual contractual agreements are also permissible in the church sector under state law, which deviate from such AVR to the detriment of the employees, § 305b . Labor law regulations passed by the Protestant Church only require employers to apply binding labor law regulations decided by any labor law commission. The diaconal institutions have the opportunity to choose between different AVRs. Therefore, it is not uncommon that e.g. B. the AVR of the diaconal work Berlin-Brandenburg-Silesian Upper Lusatia can also be used in the old federal states.

In the Catholic area, the respective KODA regulations stipulate that church employers should either apply KODA law or - as an exception - the general contractual guidelines of Caritas (AVR-Caritas). The labor law regulations agreed by the KODA are indeed put into effect by the respective diocesan bishop as church law (disputed, whether as episcopal law or as an ecclesiastical administrative act), but do not have any direct effect on employment relationships and have no normative effect like a collective agreement. The KODAen or the Labor Law Commission of the Caritas Association (AK Caritas) are to be seen as an advisory body to the diocesan bishop in terms of canon law. According to Canon 127 of the ecclesiastical code of law Codex Iuris Canonici (CIC) , the episcopal administrative regulations that the bishop puts into effect without the participation of the KODA may therefore be ineffective. Due to the decision in favor of this commission model, industrial action (in particular strikes and lockouts) should not be possible in the church sector according to the legal opinion.

Right to strike in church institutions

The question of whether a union can call workers in church institutions to strike in order to force the conclusion of collective agreements to regulate the minimum working conditions of its members, or whether the "third way" with its arbitration rules excludes a strike, is controversial.

Arguments against the right to strike

Those who reject the right to strike rely on the constitutionally guaranteed right of the churches to self-determination according to Art. 140 GG i. V. m. Art. 137 para. 3 WRV, Art. 4 GG. They consider strikes and lockouts to be incompatible with the aim of church work. In church institutions, in contrast to the private sector, there would be no contradiction between the capital of the employer and the labor of the employees, but management and employees would work together as a service community in the service of the proclamation of faith and charity. Wages and working conditions are therefore not negotiated in collective bargaining with trade unions, but in committees with equal representation. A strike in a church institution would violate the requirement to maintain industrial dispute parity. Since the churches, with regard to the principles of Christian doctrine and morals, ruled out the means of struggle of lockout as unreasonable, a strike would no longer guarantee parity.

Arguments for the right to strike

The counter-opinion argues that the church's right to self-determination only exists “within the framework of the laws that apply to all” and that it cannot exclude the freedom of activity of coalitions (trade unions, Article 9 of the Basic Law) and thus the right to strike, which is also constitutionally guaranteed. The right to strike is anchored in the European Convention on Human Rights (EMC) and the European Social Charter (ESC), which were put into effect in Germany as “laws that apply to all”. Therefore, a strike ban violates the reservation of barriers of Art. 140 GG. Neither the decision of the churches against conflictual disputes about the regulation of working conditions through collective agreements and labor disputes and for the “third way”, nor the nature of the service community justified the comprehensive exclusion of labor disputes in the area of ​​church institutions. The third way requires the consent of a willing employer for every improvement in favor of the employees and does not offer the trade unions the same opportunities to assert their interests as the state collective bargaining and labor dispute system. For the Catholic Church, a strike ban is also contrary to its own social doctrine, which, according to Canon 1286 of the Codex Iuris Canonici (CIC), must be strictly observed by economists of all church institutions such as state labor and social law.

Restrictions on the right to conduct industrial disputes should be based on the specific tasks of the church institution. If one differentiates between different groups of employees and functions depending on their proximity or distance to the charitable mandate of the institution, the self-image of the church can also be taken into account that in charitable institutions the "service to people" performed in Christian conviction is not impaired by industrial action should. A strike is z. B. also possible in church hospitals without affecting patient care.

The Left Party , Bündnis90 / Die Grünen and parts of the SPD also demand the right to strike for church workers . The FDP church paper “Free Church in the Free State”, which was adopted on October 1, 1974 at the 25th FDP federal party conference in Hamburg, calls for the complete abolition of special church rights.

Decisions of the Federal Labor Court of November 20, 2012

The two procedures were merged by the BAG for reasons of process economy. The wording of both decisions is partly identical. They are therefore to be understood in context.

Right to strike in the "second way"

If the church decides to structure the working conditions of the employees of its facilities through collective agreements ("second way"), but only on the condition that a union has previously agreed an absolute peace obligation and agrees to an arbitration agreement, according to which an arbitration board instead of industrial action in the event of a conflict under the chairmanship of an impartial arbitrator decides on the conclusion of the collective agreement, strike measures to enforce collective claims are not permitted. A compulsory arbitration should be excluded.

Right to strike in the "third way"

The Bielefeld Labor Court initially banned the strike and the appellate court allowed it.

The Federal Labor Court attempted a practical concordance of the different positions and decided the question that the practice of the third way would exclude a strike if the union was involved in the organization and the result of the negotiations - which in the event of a dispute also had to be determined by arbitration - a commission with equal representation for the employers' side is binding as a minimum working condition. The Church should not exclude trade unions from freely chosen participation in the third way through rules of appointment for labor law commissions and arbitration commissions. Only if the trade union could still be active as a coalition within the third path could a withdrawal of the rights of the trade union be justified. This gives you opportunities to recruit members. If, on the other hand, the union is not involved in setting wages, it is not forbidden to call church workers to strike in order to force the conclusion of collective agreements to regulate the minimum working conditions of its members.

The chairman of the mediation committee of the Regional Commission North of Caritas, Reinhard Baumann-Czichon, criticized the Catholic Church in Germany in the third quarter of 2015 for its implementation decision of the Federal Labor Court of November 2012. Although the Catholic Church with the revised framework for the commissions for the order of the diocesan employment contract law (framework KODA order) established the participation of the trade unions for the first time. The concrete implementation, however, ensures that the trade unions have no real influence and that they cannot go on strike. Anyone who wants to negotiate with trade unions cannot unilaterally stipulate the conditions under which negotiations should take place.

Also in the third quarter of 2015, the member of the ver.di regional and federal expert committee, Erich Szepanski, pointed out that the Evangelical Church in Germany had not been able to meet the requirements of the BAG through the labor law regulation, because the ARRG did not see adequate participation of the unions. The arbitration procedure is regulated in deficit, and there is no obligation on the employer side. Church labor law regulations are general terms and conditions that only apply if this has been expressly agreed between the contracting parties, i.e. employer and employee. This does not happen in many institutions. Therefore, the churches could not succeed in the "third way" to make their regulations binding as required by the BAG.

Constitutional Complaints

On May 4, 2015 ver.di chairman Frank Bsirske declared that for him waiving the right to strike was out of the question; If necessary, the union will take action before the Federal Constitutional Court , if necessary also before the European Court of Human Rights established by the Council of Europe . Ver.di and the Marburger Bund lodged constitutional complaints with the Federal Constitutional Court against the decisions of the Federal Labor Court , on which the second Senate of the Federal Constitutional Court had to decide.

The decision of the Federal Constitutional Court is now available. Following the decision on the ver.di procedure, a decision has now also been made on the complaint by the Marburger Bund (decision of September 28, 2015 - 2 BvR 2274/13 -). In both decisions, the Federal Constitutional Court came to the conclusion that there is currently no ban on strikes in church institutions. Therefore, church institutions as well as private companies and public offices can be on strike in Germany.

Austria

In Austria, the legally recognized churches and religious societies - unlike in Germany - are not qualified to be employers and are therefore not entitled to enter into civil service contracts . As a result, the churches and religious societies in Austria can only enter into employment relationships under private law. Some labor law norms have specific exceptions for the legally recognized churches and religious societies, for example Section 1, Paragraph 2, Item 5 of the Labor Inspection Act for “Religious Institutions of the Legally Recognized Churches and Religious Societies”, Section 1, Paragraph 3 of the Rest of Work Act for “employees of legally recognized churches and religious societies, who are not employed in companies ”or Section 20 (2) and Section 45 (2) of the Equal Treatment Act.

Works constitution law

The Labor Constitution Act (ArbVG), which provides for the formation of works councils , applies in all institutions of the legally recognized churches and religious societies in Austria . However, Section 132 (4) ArbVG has certain exceptions in favor of the legally recognized churches and religious communities.

Collective agreement law

The employment contract regulations for institutions of the Catholic Church and the church welfare organizations are only partially regulated in collective agreements. The legally recognized churches and religious societies are legal entities under public law according to § 7 ArbVG.

In the Catholic Church there are several collective agreements limited in their validity to the respective diocesan institutions.

  • Diocese of Linz: The Diocese of Linz was initially the only diocese in Austria with a collective agreement. This was signed with the union on November 11, 2000. The aim was to standardize service law and simplify administration. This step was also a measure to stabilize the diocesan budget. A solid distribution of working hours were other reasons, along with a new pension model. A minimum income and a fairer distribution of income with more opportunities for younger people were laid down in the collective agreement. The collective agreement was updated on January 1, 2017.
  • Diocese of Innsbruck: The latest collective agreement for the Diocese of Innsbruck came into force on January 1, 2017. The collective agreement replaced the previous individual agreements, salary regulations and works agreements.
Before signing the collective agreement of 2009, representatives of both negotiating partners emphasized the good climate of the negotiations and the now greater legal certainty and legally binding effect for the benefit of the employees. The collective agreement was based on the principles of Catholic social teaching. Among other things, the basis for a significant improvement in the compatibility of family and work has been created. In this regard, this collective agreement is exemplary throughout Austria.
The preamble makes explicit reference to the Ecumenical Social Word: “The churches and ecclesiastical communities endeavor in their organizations and companies to achieve humane working conditions, income equity and employee participation. This collective agreement should be a contribution to this. "
  • Diocese of Graz : With effect from September 1, 2010, a new collective agreement was signed between the Diocese of Graz-Seckau and the trade union for private employees, printing, journalism, and paper. The diocese of Graz-Seckau was the third diocese after Linz and Innsbruck to have concluded a collective agreement.
  • Archdiocese of Vienna : As an employer, the Archdiocese of Vienna agreed in 2015 to enter into negotiations with the Central Works Council of the Archdiocese and the Union of Private Employees (GPA-djp) on the creation of a collective agreement for church employees.
  • A joint collective agreement applies to the charitable institutions , which was concluded between the association representing the interests of charitable institutions of the Catholic Church in Austria and the responsible unions of the Austrian Federation of Trade Unions . It applies spatially, professionally and personally for the whole of Austria.

The 2019 collective agreement concluded between the church leadership and the Association of Evangelical Pastors applies to the spiritual officials of the Protestant Church . Special regulations apply to lecturers, secular employees, and special church and voluntary services.

Italy

In Italy, the agreement of state-recognized collective agreements is mandatory in the employment contract. These are "industry collective agreements" that must be recognized by the state. In the Diocese of Bozen-Brixen, the following "collective agreements" are mainly used:

  • Trade and services for office and pastoral workers in parishes and in the ordinariate,
  • Agriculture and forestry for agricultural workers and employees (Kirchenwald),
  • AGIDAE (Associazione Gestori Istituti Dipendenti Autorità Ecclesiali) for teaching activities,
  • Contract for Socio-Sanitary Personnel for Nursing Activities.

These collective agreements regulate minimum conditions, such as basic wages (number of annual salaries), contingency allowance (inflation adjustment), and special allowances for special forms of work (e.g. overtime, night work), number of vacation days, weekly working hours, etc. Additional benefits, e.g. B. Allowances, to be agreed. If there is no specific applicable collective agreement, separate collective agreements are concluded. The Italian Bishops' Conference concluded a collective agreement for sextons (sacristan, sacristan) with the responsible Italian trade union.

United States

In the United States of America , the separation of religion and state is so complete that there are no such extensive exceptions to the labor law of the churches. However, the so-called faith-based organizations have been completely exempt from the Civil Rights Act's prohibition on employment discrimination since 1972 , the counterpart to the German General Equal Treatment Act . Before that, since 1964, the church institutions were allowed to select employees in the preaching-related and leading area with regard to religious affiliation. With the change, the church institutions can require a denominational agreement from all employees.

See also

literature

  • Jürgen Bethke, The ecclesiastical employment relationship of laypeople - the legal position of laypeople in the Catholic Church in the professional exercise of church offices with special consideration of the legal situation in the Bavarian (arch) dioceses , (= Bamberg Theological Studies Vol. 32), Frankfurt am Main 2006
  • Jürgen Bethke, Pay and Supply - the remuneration system of the new TVöD as reflected in the canonical legal system , in: Rees, Wilhelm u. a. (Ed.): In the service of church and science - Festschrift for Alfred E. Hierold on the completion of the 65th year of life , Berlin 2007, pp. 701–727
  • Joachim Eder, collective bargaining partner for the Catholic Church? The “Third Way” of the Catholic Church in the Federal Republic of Germany from a canonical point of view , Passau 1991
  • Ulrich Hammer, Church Labor Law. Handbook , Frankfurt / Main 2002.
  • Hans Heimerl, Helmuth Pree and others in Handbook of Property Law of the Catholic Church , Section 6, Pustet-Verlag Regensburg; 1st, edition (1993)
  • Josef Jurina, Service and Labor Law in the Area of ​​the Churches in the Federal Republic of Germany , Berlin 1979
  • Jürgen Klute and Franz Segbers : Work demands fair wages , collective agreements for the churches. VSA Verlag Hamburg (2006), ISBN 3-89965-215-0
  • Hartmut Kress, Current Problems of the Church's labor law - The Third Way, the right to strike and the employee representative , Journal of Legal Policy (ZRP) 04/2012, 103
  • Hermann Lührs, The Future of Labor Law Commissions. Working relationships in the churches and their welfare associations Diakonie and Caritas between continuity, change and upheaval , Nomos Verlag, Wiesbaden 2010
  • Clemens Maier, collective labor law in the Catholic Church. The third way in the field of tension between community of service and authority , LIT-Verlag, Münster 2006, ISBN 3-8258-9163-1 (also Diss. Univ. Tübingen 2005)
  • Armin Pahlke, Church and right of association , Tübingen 1983
  • Helmuth Pree, The position of the ecclesiastical lay servant in the CIC / 1983 , in: Law in the service of people , FS for Hugo Schwendenwein , ed. v. Klaus Lüdicke, Graz 1987, p. 467 ff.
  • Richard Puza , The official and professional duties of church employees in Germany, in: ThQ 183 (2003), pp. 39–70
  • Anton Rauscher, The Character of Church Service , Würzburg 1983
  • Reinhard Richard , Labor Law in the Church , 5th edition, Munich 2009, ISBN 978-3-406-55682-1
  • Ulrich Rhode, The Bishop and the Third Way , in: Law in State and Church - Joseph Listl on his 75th birthday , Wilhelm Rees (Ed.), Berlin 2004, pp. 313–339, Berlin 2004, pp. 313–339

TV documentaries

Individual evidence

  1. ^ Church as an employer. The main thing is a Christian . In: Frankfurter Allgemeine Zeitung , December 24, 2012. Accessed December 24, 2012.
  2. ↑ BVerfGE 46, 73 .
  3. ^ BAG, decision of July 24, 1991 , Az. 7 ABR 34/90, BAGE 68, 174
  4. ↑ Basic rules of church service (PDF; 33 kB)
  5. ↑ Guideline of the Council on the requirements of professional work under private law in the Evangelical Church in Germany and the Diakonisches Werk der EKD
  6. ↑ Decision of the Second Senate of the Federal Constitutional Court of June 4, 1985, - 2 BvR 1703, 1718/83 and 856/84 - (guideline No. 5) . Online at servat.unibe.ch.
  7. ↑ Termination due to leaving the church . Judgment of the Federal Labor Court of April 25, 2013 - 2 AZR 579/12. Online at juris.bundesarbeitsgericht.de.
  8. ↑ Decision of October 22, 2014 - 2 BvR 661/12
  9. ↑ Az: 2 Ca 4226/11
  10. ↑ BAG, judgment of February 21, 2001 , Az. 2 AZR 139/00, full text.
  11. ↑ European Court of Human Rights, Siebenhaar v. Germany , Chamber judgment of February 3, 2011, Az. 18136/02.
  12. ↑ tagesschau.de: Leaving the church is a reason for termination ( Memento from April 28, 2013 in the Internet Archive )
  13. ↑ ECJ, judgment of April 17, 2018, case C-414/16, Vera Egenberger / Evangelisches Werk für Diakonie und Entwicklung e. V.
  14. ↑ Court of Justice of the European Union: Press Release No. 46/18 of April 17, 2018
  15. ↑ Spiegel.de: ECJ: Ecclesiastical employers may also have to employ people with no religious affiliation
  16. ^ Judgment on labor law: ECJ enforces new rules for church jobs tagesschau.de, April 17, 2018
  17. ↑ Frankfurter Rundschau: ECJ judgment on church labor law , accessed on April 17, 2018
  18. ↑ Zeit.de: Churches are not allowed to discriminate , accessed on April 17, 2018
  19. ↑ [1] , accessed on October 25, 2018,
  20. ↑ As of today, most German dioceses have a new basic order . ver.di Bavaria. August 1, 2015. Archived from the original on October 24, 2017. Retrieved on October 24, 2017.
  21. ↑ a b c Prof. Dr. Ulrich Hammer: "Why the Association of Dioceses of Germany (VDD) is liberalizing church labor law". In: Labor Law and Church - Journal for Employee Representations, issue 3/2015, pages 83–85 , KellnerVerlag in Bremen, pp. 83–85. Archived from the original on October 24, 2017. Retrieved October 24, 2017. 
  22. ↑ a b c German bishops change church labor law . Catholic News Agency (KNA) GmbH. May 5, 2015. Archived from the original on October 24, 2017. Retrieved on October 24, 2017.
  23. ↑ a b press release no. 072/2015: Change in Church Labor Law: Bishops decide to amend the "Basic Order of Church Service in the Framework of Church Employment Relationships" . German Bishops' Conference. May 5, 2015. Archived from the original on October 24, 2017. Retrieved on October 24, 2017.
  24. ↑ Bayerischer Rundfunk: The last bishops follow suit, no general dismissal in the event of a second marriage or partnership ( memento of October 15, 2015 in the Internet Archive )
  25. ^ Church dispute : Bavarian bishops against more liberal labor law , Süddeutsche Zeitung. July 15, 2015. Archived from the original on October 24, 2017. Retrieved on October 24, 2017. 
  26. ↑ Divorces: Dioceses liberalize Catholic labor law , Die Welt. July 16, 2017. Archived from the original on October 24, 2017. Retrieved on October 24, 2017. 
  27. ↑ The EKD's position: Strengthening reliability and responsibility ( Memento of November 16, 2011 in the Internet Archive )
  28. ^ AG Frankfurt, Az. 7 Ca 7285/06.
  29. ↑ Wikinews: Kolping Society loses labor court case and Spiegel: Home manager may continue to work despite looking for a partner
  30. ↑ Press release of the commission of January 31, 2008 , answer of the federal government to a small question (PDF; 111 kB), communication of the Heinrich Böll Foundation ( memento of October 22, 2008 in the Internet Archive )
    The commission announced on November 27, 2008 in a press release that the examination in the proceedings against Germany is still ongoing.
  31. ↑ Press release from the Federal Labor Court and report from the Süddeutsche Zeitung: Court eases dismissal actions: "Sensation of the year" ( Memento from September 11, 2012 in the web archive archive.today )
  32. ↑ LAG Düsseldorf, judgment of July 1, 2009 , Az. 5 Sa 996/09, full text.
  33. ↑ BAG, judgment of September 8, 2011 , Az. 2 AZR 543/10, press release of September 8, 2011.
  34. ↑ The dismissal of the Catholic chief physician after his remarriage was preceded by comparable violations by other (Protestant) employees, which were tolerated, and the employer side had long known the marriage-like relationship of the chief physician. Moral violation: Catholic clinic may terminate the doctor because of the second marriage
  35. ↑ Federal Constitutional Court, decision of October 22, 2014, 2 BvR 661/12
  36. ↑ [cf. Sczepanski, "Some comments on the decision of the Federal Constitutional Court" in AuK 2015, 102]
  37. ↑ [cf. Hammer in ZTR 2015, issue 10, p. 551 ff]
  38. ↑ BAG, decision of July 28, 2016 - 2 AZR 746/14
  39. ↑ ECJ, judgment of 11 September 2018 case C ‑ 68/17
  40. ↑ Remarried Catholic: ECJ criticizes dismissal by church tagesschau.de , September 11, 2018
  41. ↑ Lucas Wiegelmann: The Catholic Church apparently discriminated chief physician - because he is Catholic. In: www.welt.de. September 11, 2018, accessed September 11, 2018 .
  42. ↑ Press release No. 10/19
  43. ↑ Luisa Jacobs / zeit.de February 20, 2019: Welcome to the Basic Law, dear Church!
  44. ↑ BAG, judgment of September 16, 2004 , Az. 2 AZR 447/03, full text.
  45. ↑ ECHR: Judgment - Schüth v. Germany (complaint no. 1620/03). September 23, 2010, accessed September 24, 2010 .
  46. ↑ ECHR: Press Release No. 688 - Dismissal of church employees for adultery: Courts must weigh up the rights of both parties and take into account the type of activity. September 23, 2010, accessed September 24, 2010 .
  47. ↑ ECHR: Judgment - SCHÜTH v GERMANY (1620-1603). June 26, 2012. Retrieved June 26, 2012 .
  48. ↑ ArbG Hamburg, judgment of December 4, 2007 ( Memento of January 10, 2017 in the Internet Archive ), Az. 20 Ca 105/07, press release; repealed by LAG Hamburg, judgment of October 29, 2008 , Az. 3 Sa 15/08 on openjur.de; Comment on the ArbG judgment.
  49. ^ Domradio (September 28, 2012): The autumn plenary assembly of the Catholic bishops ends - balance sheet in Fulda
  50. ^ PDF of the German Bishops' Conference
  51. ↑ Tagesschau.de
  52. ↑ As of today, most German dioceses have a new basic order . ver.di Bavaria. August 1, 2015. Archived from the original on October 24, 2017. Retrieved on October 24, 2017.
  53. ↑ Helmut Ullrich: Caritas has to keep employees working after a second marriage Westfalenpost , August 14, 2018
  54. ^ Case Obst versus Germany. German translation
  55. ↑ For the AVR-Caritas decided by BAG, decision of January 23, 2002 , Az. 4 AZN 760/01, for the Protestant area by BAG, decision of March 25, 2009 , Az. 7 AZR 710/07.
  56. ^ BAG, judgment of November 17, 2005 , Az. 6 AZR 160/05. These regulations neither have the quality of a collective agreement, nor are they equivalent to collective agreements (constant higher court rulings), cf. BAG, judgment of September 24, 1997 , Az. 4 AZR 452/96, full text; BAG, judgment of March 20, 2002 , Az. 4 AZR 101/01, full text; LAG Hamm, judgment of October 17, 2000 , Az. 7 Sa 1149/00 = ZMV 2/2001 p. 85 ff.
  57. ^ BAG, judgment of November 17, 2005 , Az. 6 AZR 160/05. Full text.
  58. ^ BAG, judgment of July 22, 2010 , Az. 6 AZR 847/07, full text
  59. ↑ BAG, judgment of June 8, 2005 , Az. 4 AZR 412/04, full text, Rn. 53 ff., NZA 2006, 611, 615 ff.
  60. ↑ A summary of the state of opinion can be found at Dr. Jürgen Kühling, former judge at the Federal Constitutional Court, labor dispute in the Diakonie, section BI
  61. ↑ ArbG Bielefeld, judgment of March 3, 2010 , Az.3 Ca 2958/09, full text = ZMV 2010, 224–227.
  62. ↑ a b LAG Hamm, judgment of January 13, 2011 , Az. 8 Sa 788/10, full text
  63. ↑ Left Party: The right to strike must also apply to church workers
  64. ↑ The right to strike is a fundamental right: Letter of support from the Bündnis 90 / Die Grünen parliamentary group
  65. ↑ SPD Darmstadt: SPD employees in Darmstadt submit application ( Memento from February 3, 2013 in the Internet Archive )
  66. ↑ "Free Church in the Free State" https://pw-portal.de/rezension/33448-frei-kirche-im-frei-staat_40030
  67. ↑ Federal Labor Court, press release judgment of November 20, 2012, 1 AZR 611/11
  68. ^ Federal Labor Court, judgment of November 20, 2012, 1 AZR 611/11
  69. ↑ ArbG Bielefeld, judgment of March 3, 2010 , Az.3 Ca 2958/09, full text = ZMV 2010, 224 - 227.
  70. ^ Judgment of the Federal Labor Court of November 20, 2012 , 1 AZR 179/11
  71. ^ Judgment of the Federal Labor Court of November 20, 2012, file number 1 AZR 179/11 press release
  72. ↑ Federal Labor Court loosens the church's ban on strikes , Zeit online from November 20, 2012, accessed on November 20, 2012.
  73. ↑ The court relaxes the ban on strikes for church workers , report on spiegel.de from November 20, 2012, accessed on November 20, 2012
  74. ↑ Church workers are allowed to strike , Süddeutsche Zeitung online from November 20, 2012, accessed on November 20, 2012.
  75. ↑ Reinhard Bingener, Corinna Budras: Churches can rule out strikes , faz.net, November 20, 2012, accessed on November 20, 2012.
  76. ↑ Church employees may also go on strike in the future , Berliner Morgenpost from November 20, 2012, accessed on November 20, 2012
  77. ↑ Martin Hensche (specialist lawyer for labor law): Strikes in church institutions even when using the third way of November 21, 2012, accessed on November 21, 2012
  78. ↑ Sczepanski: “Current Problems of Church Labor Law” in Zeitschrift für Rechtssppolitik, ZRP, 2/2013 p. 61 f
  79. ↑ a b c d e Erich Sczepanski: "Ver.di fights for the right to strike: won before the BAG, lost before the BVerfG?". In: Labor Law and Church - Journal for Employee Representatives Issue 3/2015, pages 91–93 , KellnerVerlag in Bremen, pp. 91-93. Archived from the original on October 24, 2017. Retrieved October 24, 2017. 
  80. ↑ a b Reinhard Baumann-Czichon: "KODA locks trade unions out" In: Arbeitsrecht und Kirche - Zeitschrift für Arbeiterverertretungen, Issue 3/2015, pages 86-87 , KellnerVerlag in Bremen, pp. 86-87. Archived from the original on October 24, 2017. Retrieved October 24, 2017. 
  81. ↑ File number 2 BvR 2274/13, 2 BvR 2292/13 ( Memento from August 12, 2014 in the Internet Archive )
  82. ↑ Frankfurter Allgemeine Zeitung article Complaint against fundamental judgment: Constitutional judges examine right to strike in churches from April 14, 2014
  83. ↑ Resolution of the Second Senate of July 15, 2015 - 2 BvR 2292/13 - on the isolated vulnerability of reasons for a judgment by way of a constitutional complaint (decision after a successful complaint against the exclusion of the right to strike in church and diaconal institutions through canonical labor law regulations; so-called "Third way")
  84. ↑ a b Herbert Kalb, Richard Potz, Brigitte Schinkele: Religionsrecht , WUV Universitätsverlag, p. 285
  85. ↑ Diocese of Linz / KV brief overview.Retrieved on December 5, 2017.
  86. ↑ Collective agreement of the Diocese of Innsbruck Valid from January 1, 2017, accessed on December 5, 2017.
  87. ↑ Collective agreement of the Graz-Seckau diocese as of January 1, 2016, accessed on December 5, 2017
  88. ↑ Archdiocese of Vienna negotiating a collective agreement , on orf.at. Retrieved January 9, 2017.
  89. ↑ Collective agreement for employees and apprentices of charitable institutions of the Catholic Church in Austria In the version of February 1, 2017, accessed on December 5, 2017.
  90. ↑ collective agreement 2019. Accessed January 25, 2020 .
  91. ^ Legal database of the Evangelical Church in Austria. Retrieved December 5, 2017 .
  92. ^ Duane Shank: Religious organizations and fair hiring. ( Memento from September 9, 2011 in the Internet Archive )

Web links